Download Jurisprudence notes for semester 3 and more Lecture notes Law in PDF only on Docsity!
Hart’s conception of law, the law binds us to act in certain ways, for legal obligation either independently of a substantive theory of reasons for action or by isolating legal reasons for action as a special type not reducible to morality. The union of primary and secondary rules were binding on their addressees, difference between ‘being obligated’ and ‘being obliged’ as the recognised fully developed legal system makes the legal rules obligatory Hart’s method and his reliance on early philosophy of language, which allowed him to differentiate his account of law from coercion-based ones on the basis of legal obligation. Hart’s surface description of legal obligation does not serve to elucidate the concept of law. Hart’s methodology: He claimed that the concept of law, which he developed, applied to a wider range of phenomena, not exhausted in certain municipal jurisdictions and it is neutral in the sense that it does not entail any evaluation on his part, whether legal philosophy is practical or theoretical. Dworkin argued that sheer description of law is impossible because law is a normative concept and every enquiry into it is inevitably committed; Perry, the corollary argument that Hart’s methodologically neutral stance disappoints the claim to neutrality, premised on the normative claim to the three problems of pre-modern systems of governance in uncertainty, stasis and inefficiency; and Finnis, who argued that even if description is possible, it is incomplete and a purely descriptive legal theoretical project is redundant. Although the argument is right, it is not an objection to his theory, the aim of which was simply to record law’s sociological conditions of existence. Hart reduced the law. Finnis’s and Dworkin’s arguments regarding the practical point of view. In defence of Hartian positivism, Marmor’s conventionalism that law is a conventional practice and its normativity is generated internally and independently of the reasons that may animate the law in the first place that the internal point of view can only be the practical perspective of the agent who acts on reasons. Hart’s account of fully developed legal system in terms of the union of primary and secondary rules. The concept of law : the common elements of the the diverse range of cases could be extracted through the less direct relations by analogy of either form or content to be framed into the category of a central case as the union of elements to a central place; from their explanatory power to constitute the framework of legal thought. The justification could be secured by secondary rules when the common elements have been grasped. Legal rules which differ from orders, they are explicit prescription commonly applies to those who enact it and not merely to others which conferring legal powers to adjudicate or legislate (public powers), creating or varying legal relations (private powers), for the continuity of legislative authority characteristic of a modern legal system, and the sovereign person or persons could be identified with the electorate or the legislature of a modern state. Primary rules impose duties concerning actions involving physical movement or changes. Secondary rules confer powers, public or private, providing for operations which lead not merely to physical movement or change, but to the creation or variation of duties or obligations. The combination of these two types of rule there lies what Austin wrongly claimed to have found in the notion of coercive orders, namely, 'the key to the science of jurisprudence'; The law becomes reliable predictions (Presuppositions) ignoring motives and beliefs as different reasons to comply with the obligations and which is different from orders backed by threat theory. Obligations and duties are thought of as characteristically involving sacrifice or renunciation, and the standing possibility of conflict of interest, in all societies, among the truisms of both the lawyer and the moralist. For rules of habit, although satisfied to Austin, Hart states consistency and continuity of law, habits only require convergence of behaviour but coercive orders require also convergence of attitude. A political theory relating to the rule of law, government of men (sovereign) not of rules, John Austin fails to distinguish between linguistic terms of being obliged, which may relate to fear, from being under an obligation which relates to authority. Same as Kelsen, law can be reduced to habitual obedience to a sovereign. Predictions, one ought to stop at a red light and the prediction that one will. Hart’s account of social rules and legal rules are also criticised by Rule-scepticism, American Legal Realism - cases actually decided by judges. Fuller’s readiness, in contrast with the positivists, to allow for degrees of legality. His eight requirements of the rule of law was inadequate as to his conception of ‘thinking in degrees of legality’. King Rex was hanged after revolution even Rex II inherited, sovereignty shifted to legal officials. The function of the rule of recognition, as regards its provision of a supreme criterion in the hierarchy of sources of law, as the ultimate rule of the system, as a rule which is both a norm and a fact of social practice. Finnis’s criticism that the internal attitude of officials to the rule of recognition is in fact an attitude of moral approval, and Dworkin’s ‘rules and principles’ criticism of Hart wherein he argues that Hart’s ‘master rule’ treats legal validity as a matter of ‘pedigree’ and ignores the important place of moral principles in the law. Dworkin’s semantic sting argument and the objection that empiricist positivism cannot account for theoretical disagreement in law. Hart’s claim that the OBT theory treats the law as the ‘gunman’ situation writ large, the distinction Hart points out between being obliged and being under an obligation, the difference between power-conferring and duty-imposing rules, Hart and Fuller took in the debate over the ‘grudge informer’ case, and over Fuller’s claim that the law revealed itself as having an inner morality, the eight principles of which Fuller believed he had discovered. Secondary rules which they rightly stated were duty-imposing. Austin’s command theory which Hart’s theory was, in part, aimed at addressing. The idea of secondary rules, in particular perhaps the rule of recognition, critically, drawing upon the later work of Dworkin and/or Raz and/or Finnis. Description of the flaws of a primitive legal community, rules of change, adjudication and recognition. Hart’s theory dependent upon the elaboration of the internal attitude by MacCormick, distinguishing between volitional and cognitive elements, or by Raz, with his distinction between committed and detached statements; ‘anarchist’ judge, whether the willingness to comply with the law is no more a matter of moral approval than the willingness to play a game by the rules. The natural law tradition, Finnis’s broader concept of human need in terms of the requirements for human flourishing which he regards the law as being uniquely suited to provide and protect the five characteristics of humans. Hart embraced in the Postscript. No contradiction between an attempt to elaborate a rule of recognition which is necessary for a modern legal system, and an argum ent that – as a matter of history or culture, law might have a moral element. Postscript to The Concept of Law , a difference between the characterisation of a concept and ‘its application’; Raz, law is a concept that can be characterised independently of adopting any evaluative point of view in Finnis’s sense; conclude that Dworkin is wrong to identify questions to do with the justification – Hart’s ‘application’ – of particular legal decision with law as a whole. Hart’s methodology: The main reason for identifying law independently of morality – his justification for legal positivism is to preserve individual conscience from the demands of the state; The gunman merely ‘obliges’; the taxman ‘imposes an obligation. Earliest modern legal theory in England – the imperative or ‘command’ theory of law, associated with Jeremy Bentham and John Austin. The theory is based in a conception of sovereignty derived from long traditions of political thought to which Thomas Hobbes (1588–1679) was a chief contributor , but adapted in significant ways to what Bentham and Austin understood as the political, social and legal conditions of their times. Hobbes presents a strictly materialist conception of mankind and then a narrative of the ‘natural condition of man’ that served to found his political philosophy. H.L.A. Hart develops a modern version influenced by Hobbes in Chapter IX of the Concept of Law****. Hart constantly brackets law with what Austin called positive morality, indicated conventional morality logically, he assumes that there is an unqualified
page 282 University of London International Programmes
Morality, and this Hart calls natural law. Common content as discoverable by reason; His conclusion, human society cannot survive unless human beings accept certain constraints on their behaviour. These constraints are what Hart terms minimum content of natural law. These rules are all prohibitive : there is no positive inducement to act in virtuous ways, only inhibitions against wrongdoing, with only primary rules. In 1826, when University College London, was founded, he was appointed its first professor of jurisprudence; Austin tried to put ‘positive law’ into a political framework, taken in considerable part from Hobbes: law was part of the political relations of sovereign and subject. The rules established by political superiors is frequently styled positive law, or law existing by position. The custom is transmuted into positive law, before it is adopted by the courts, and clothed with the legal sanction, it is merely a rule of positive morality: a rule generally observed by the citizens or subjects; Positive laws, or laws strictly so called, are established directly or immediately by authors of three kinds: by monarchs, or sovereign bodies, as supreme political superiors: by men in a state of subjection, as subordinate political superiors: by subjects, as private persons, in pursuance of legal rights. The positive moral rules which are laws properly so called, are distinguished from other laws by the union of two marks: 1) They are imperative laws or rules set by men to men. 2) They are not set by men as political superiors, nor are they set by men as private persons, in pursuance of legal rights, they are not commands of sovereigns in the character of political superiors. Consequently, they are not positive laws: they are not clothed with legal sanctions, nor do they oblige legally the persons to whom they are set. But being commands (and therefore being established by determinate individuals or bodies), they are laws properly so called: they are armed with sanctions, and impose duties, in the proper acceptation of the terms. Austin interpreted utilitarianism so that Divine will is equated with utilitarian principles: ‘utility is the index to the law of God... To make a promise which general utility condemns, is an offense against the law of God’; Analytical jurisprudence became the dominant approach in analysing the nature of law (Cotterrell, 2003). Austin tied his analytical method to a systematic exposition of a view of law known as ‘legal positivism’; his ‘command theory of law’ clearly stated that his theory drew upon Hobbes and Bentham could also be characterised as ‘command theory’. L aw was ‘other’ than governmental power. By contrast, Hobbes, Bentham and Austin identified (positive) law as the creation of government (the sovereign) and as part of government’s instruments to achieve (rational, coherent and defendable) rule. The ‘sovereign’ was defined as a person or collection of persons who receives habitual obedience from the bulk of the population, but who does not habitually obey any other person or institution. Austin also wanted to include within ‘the province of jurisprudence’ certain ‘exceptions’ – Non-imperative: repealing laws, declarative laws, and ‘imperfect laws’ Austin succeeded in delimiting law and legal rules from religion, morality, convention and custom; excluded from ‘the province of jurisprudence’ were customary law, public international law and parts of constitutional law. Austin is not playing the nihilist or the sceptic. He is merely pointing out that there is much that is law that is not moral, and what makes something law does nothing to guarantee its moral value: While Bentham was an opponent of judicial lawmaking, Austin had no objection to it, describing it as ‘highly beneficial and even absolutely necessary’ (Austin, 1995: Lecture V, p. 163). Austin simply incorporated judicial lawmaking into his command theory: by characterising that form of lawmaking, along with the occasional legal/judicial recognition of customs by judges, as the ‘tacit commands’ of the sovereign, with the sovereign’s affirming the ‘orders’ by its acquiescence. it is hard to identify a ‘sovereign’ in Austin’s sense of the word; he described the British ‘sovereign’ rather awkwardly as the combination of the King, the House of Lords, and all the electors of the House of Commons. In other places Austin talked even more loosely about using ‘sovereign powers’. Putting the focus on a ‘sovereign’ as the source of law makes it difficult to explain the continuity of legal systems: a new ruler will not come in with the kind of ‘habit of obedience’ that Austen sets as a criterion for a system’s rule-maker. However, one could argue (see Harris, 1977) that the sovereign is best understood as a constructive metaphor: that law should be viewed as if it reflected the view of a single will. It is also a common criticism that a ‘command’ model seems to fit some aspects of law poorly (e.g. rules which grant powers to officials and to private citizens
- of the latter, the rules for making wills, trusts and contracts are examples), while excluding other matters (e.g. international law) which we are not inclined to exclude from the category ‘law’. The sanction of ‘nullity’ on those who fail to comply with the relevant provisions – they are arguably about granting power and autonomy, not punishing wrongdoing. When Hart revived legal positivism in the middle of the twentieth century, he did it by criticising and building on Austin’s theory. In some respects he followed the legal pluralism obvious from Austin’s first lecture, Hart’s theory did not try to reduce all laws to one kind of rule, but emphasised the varying types and functions of legal rules; on the distinction between ‘obligation’ and ‘being obliged’, was built around the fact that some participants within legal systems ‘accepted’ the legal rules as reasons for action, above and beyond the fear of sanctions; others, however, obeyed because of sanctions or simply habit Austin can be seen as all too trusting of centralised power and his writing as a strange mixture of analyticism and realism, kept the political nature of law and the connection of law and power at the centre of his analysis. Both Cotterrell and Morrison, conversely, argue that Hart’s treatment may be analytically pleasurable, but is based on a abstracted model and not in
page 282 University of London International Programmes
morality. H.L.A. Hart (1907–1992), The Concept of Law, first published in 1961, provides an accurate account of how we should understand law. Analysis of the idea of a rule, and how rules much better explain law than the idea of an ‘order backed by threats’ implicit in Bentham and Austin, to his claiming that it is in the ‘union of primary and secondary rules’ that the ‘key’ to jurisprudence is to be found. Hart’s theory is a modern restatement of the theory of legal positivism first expounded in the nineteenth century by Jeremy Bentham and his disciple John Austin. Hart believed that the ideal model of law was that of a ‘modern municipal legal system’ in which laws were to be identified according to the sources of law that judges accepted. Since what the judges accepted was a matter of empirical fact, it would not ‘necessarily’ be the case that law had a moral content. The criticisms that Hart makes of what he calls the ‘orders backed by threats theory writ large’, which is really an attack on Austin’s and Bentham’s command theory of law The distinction between the internal and external points of view, we cannot understand properly what a social practice such as rule-following, from the point of view of someone who accepts that practice as a guide to conduct. The ‘external’ point of view is manifested by someone who does not accept the practice; International lawyers have long debated of whether international law is ‘really’ law since there is no world court, nor world legislature, nor an internationally agreed form of sanctions. Hart abandons the idea of a ‘simple’ definition for law and adopts instead what can be described as a model of law, one against which the ‘difficult cases’ of international and primitive law might be compared. The model of law is constituted by a ‘central set of elements’ that describes a ‘modern municipal legal system’. A comparison can be made with the difficult cases of international and primitive law. Since the modern municipal legal system has courts, and has a legislature as well as involving the application of rules, it is then possible to say: ‘international law is law to the extent that it shares similarities with this central case. Hart’s orders backed by threats (OBT) theory of law, which is fairly closely based on Austin’s theory of law as the command of the sovereign. Hart considers linguistic differences between orders and laws and this introduces the reader to what is often called ‘the linguistic method’ or the ‘method of linguistic philosophy’. ‘being obliged’ and ‘being under an obligation’. ‘Orders backed by threats writ large’, assumed that law really consisted of orders directed to us by the legal sovereign; The model of orders is much closer to the idea that all laws impose duties , as though all laws were really of the sort that we find most common in criminal law and tort. The model does not take into account the existence of rules that confer powers on people to do things. But Hart again points out that with law it is not necessary in every case to be able to locate the time and place of the coming into force of the order, e.g. common law. the rule-related idea of a ‘right to sovereignty’ is possible, such that a succeeding sovereign (which he calls ‘Rex II’) gains the right to succession. The OBT, where those orders issue from a determinate body of people, must fail because it ignores the corporate nature of the legal sovereign. Here Hart creates his own model of law as opposed to the Austinian model. Law includes the idea of obligation and that idea implies the existence of strongly supported social rules. it would only be ‘pre-legal’, because it would suffer from what he calls certain ‘social defects’. Such a society, he says, would be ‘static’, ‘inefficient’ and would create undesirable ‘uncertainty’. To cure these defects, Hart constructs three power-conferring rules, which he now calls the ‘secondary rules’: The rules of change that introduce private and public powers of legislation and repeal and ‘cure’ the defect of lack of progress (static); He introduces the rules of adjudication and these ‘cure’ the defect of inefficiency by introducing the courts and other institutions of law enforcement; and the rule of recognition which, by conferring power on people to identify the law for certain through the institution of criteria of legal validity , ‘cures’ the ‘defect’ of uncertainty. The result of this construction from duty-imposing to power-conferring rules, creates Hart’s well-known ‘union of primary and secondary rules’ which forms the central ‘set of elements’ that constitutes law. Hart thought that in the union of primary and secondary rules he had found ‘the key to the science of jurisprudence’. The rule of recognition is identified as a matter of empirical fact by his special means of identifying law that Hart establishes the positivistic nature of his thesis, in which law is to be seen as something independent from morality. The ‘central set of elements’ constituting law consists of ‘the union of primary and secondary rules’. The rule of recognition is accepted by the officials – the judges – of the system. Hart’s view of legal reasoning, distinction between the core and penumbra of settled rules; Hart distinguishes between that sort of procedural justice and justice of the law. Stephen Perry has written an influential article on Hart’s methodology, Hart’s theory cannot be purely ‘neutral’ and ‘descriptive’, as Hart maintained in his Postscript. In ‘Hart’s Methodological Positivism’, Perry argues that there is a difficulty in Hart’s use of a ‘descriptive-explanatory’ approach implicit in Hart’s Preface. Under this methodology, explanatory power is determined by ‘meta- theoretical’ criteria such as predictive power, coherence, and an attempt at ‘covering’ all the available phenomena. Perry rejects this sort of method. He says that Hart instead relies on ‘evaluative judgments’ in his choice of a ‘central case’ of law. If the aim of a description is ‘accuracy’, then it should report inconsistencies and different views about what obligations people are under, but these too can only be understood by addressing the central question of whether people actually are under obligations. The rule of recognition was designed to ‘cure’ the ‘defect of uncertainty’ in a legal system, the status of some rule as a ‘legal’ rule, as opposed to a religious rule, or a moral rule, is in doubt. Some doubt as to its scope prohibits vehicles from the park, prohibit roller-skates. What is the rule supposed to do in addition to curing these defects? Hart thinks it has several roles, one of which is to turn a set of legal rules into a legal system ; another of which is to array legal criteria in a hierarchy, from a supreme criterion of validity (in the UK, what Crown-in-Parliament enacts) to subordinate criteria (local custom). The central role that the rule of recognition plays in determining Hart’s legal positivism. It is through the rule of recognition, established as a matter of empirical fact about what judges do, that we find out what the law is, and so it is not necessary for us to make moral judgements in order to determine the validity of law.
Hart’s methodology, Sociological evidence is strikingly absent from The Concept of Law , especially since Hart described his book as ‘an essay in descriptive sociology’. A rule of recognition, therefore, is simply a rule whose function is to identify whether or not another rule is part of the legal system. The supreme criterion is part of the rule of recognition and is the part which dominates over the rest. So the supreme criterion in the United Kingdom legal system is Parliamentary enactment, and if the common law, or local or general custom, conflicts with Parliamentary enactment, that enactment prevails. The ultimate rule of the system is the rule of recognition itself. It is ultimate in the sense that Kelsen’s basic norm is, because we cannot trace validity back any further. The criteria for the existence of a legal system are that: The officials of the legal system must have the internal attitude towards the rule of recognition of the system. Hart, there should be a unified or shared official acceptance of the rule of recognition containing the systems criteria of validity. Finnis: Hart leaves insufficiently specified the sort of attitude towards the rule of recognition that the officials have, there must be a central set of elements that constitute an official’s acceptance of the rule of recognit, is a moral acceptance of the rule. Finnis claims to have found a conceptual, logical link between validity and morality. MacCormick’s Legal Rights and Legal Reasoning. A proper legal theory must explain the moral force of law and that a proper interpretation of law requires us to make the best moral sense of our legal practices. Dworkin’s theory of judicial integrity is important and the difficulty is that, although he writes in the same rigorous intellectual mould of Bentham, Kelsen, Hart and so on, he is not a legal positivist. No ‘descriptive’ sense of what a rule means independent of making an interpretation of that rule. It is very common to suppose that ‘vehicles are prohibited from the park’ says something very clear. Certainly, Hart was of that opinion, and he usefully distinguished between the ‘core’ meaning of a rule – the uncontroversially clear meaning – and the ‘penumbra’ in which there is a degree of uncertainty about what the law requires. R. v Registrar of Births, ex parte Smith, section 51 clearly gives him a right to his birth certificate, Parliament had also declared the aiding, abetting, procuring and counselling of criminal offences to be illegal. Finnis criticises Hart’s rule of recognition for its over-emphasis on identification through empirical fact, the rule of recognition must serve some moral function enabling us to lead our lives in a better way, and then there will be a ‘necessary’ link between law and morality. Dworkin criticises the rule of recognition because it leaves judicial reasoning outside the realm of law. Since legal reasoning in hard cases is controversial, the rule of recognition cannot adequately identify the law to be applied. By ‘descriptive’ he says that he intended it to be morally neutral and with no justificatory aims. This is a radically different enterprise from that envisaged by Dworkin which is in part evaluative and justificatory and addressed to a particular legal culture. The Nazi grudge informer case. Hart disagrees with Dworkin that the point or purpose of law or legal practice is to justify coercion: ‘it certainly is not and never has been my view that law has this as its point or purpose’ (p. 248). Hart still maintains the view that the Nazi-type legal system, while undeniably of moral wickedness, was nevertheless law since the various features it shares with other modern municipal legal systems are too great for a universal-descriptive legal theory to ignore. The ‘semantic sting’ criticism, to be found in Chapter 1 of Law’s Empire, is that no adequate account of law can be based on a description solely of how people speak. Consequently, in line with what Hart argues at first in his Postscript, that he is about universal description and Dworkin is about justification of state coercive powers, Hart rather reasonably concludes that, in characterising the Nazi legal system, he and Dworkin are really talking at cross purposes. Hart thinks Dworkin exaggerates the differences and refers to the Riggs v Palmer decision which Dworkin famously uses to show how principles decide cases ( Taking Rights Seriously, Chapter 2). Hart thinks this decision shows clearly not a clash between two principles but between a rule and a principle. he thinks that there are cases where judges exercise their judicial discretion by acting as judicial law- makers and he does not think that this poses a great threat to democracy. nulla poena sine lege principle ‘no punishment without law’ ‘Dworkin’s theory is fundamentally a normative theory of law, offering guidance to the judge as to his judicial duty. Hart’s is a descriptive theory, offered to historians to enable a discriminating history of legal systems to be written.’ (Finnis) Hart argues for legal positivism in his discussion of the Nazi informer case and the debate he had with Fuller; Hart’s argument against an American school of thought known as Legal Realism which expressed a particular view about the nature of legal reasoning. It accused the positivists of being formalistic and of ignoring the facts of adjudication and judicial lawmaking. The rigid distinction between law and morality as positivism ignores what judges are doing when they come to their decisions, there was a merger or intersection of law and morality. Hart says that it was a central insight of the realist school to draw attention to these hard cases. A legal rule which forbids us to take a vehicle through the park. The general words we use like “vehicle” must have some standard instance in which no doubts are felt about its application.’ He agrees that judicial decisions made in penumbral cases cannot be made as a matter of logical deduction, because a decision has to be made whether to classify the item as coming within the language of the enactment, it does not follow from the fact that formalistic reasoning is wrong in these areas of the law, that judges do in fact, or ought, to decide morally. The grudge informer case arises in well-known debate between Professor Hart and Professor Lon Fuller Hart takes on the criticism of positivism of a German jurist called Gustav Radbruch; after his experience of the Germany of the 1930s and during the war, his views radically changed and he became convinced that legal positivism was one of the factors that contributed to Nazi Germany’s horrors, Radbruch claimed that a law could not be legally valid until (a) it had passed the
directed at legal positivism in all its forms. Kelsen’s aim in producing what he called his ‘pure theory’ was to enable us to think of law independently of any ideological content. Kelsen says that the description of law , even although it is a set of ‘ought- propositions’, is something different from saying what the law ought to be ; that is, it is something different from prescribing the ‘content’ of law. Kelsen draws a clear distinction between the content and the form of the law; these certainly do not describe what the moral content of the law ought to be. The ‘purity’. A norm, in Kelsen’s terms, is in essence action-directing, and should not be thought of only as imposing a duty, but also as including the idea of a permission or power, as the norm permits or empowers the judge. Kelsen distinguishes between legal, moral and other norms. Moral norms are merely, in his view, propositions describing our subjective preferences for behaviour, and he is critical of ‘natural lawyers’ who think that morality is something objective. Kelsen actually said that he thought that all of our moral judgments are irrational , because they could do no more than express our feelings or intuitions. His famous Grundnorm – ‘since it is only the transcendental-logical condition of this normative interpretation, it does not perform an ethical-political but an epistemological function’, The Pure Theory (1978), the Grundnorm is an assumption that stands outside the law that shows us how we can know what is law. ‘Law is an order of human behaviour’ which ‘designates a specific technique of social organisation’; the technique is essentially one of coercion , by the systematic use of sanctions, and is applied by agents or officials authorised by the legal order to apply sanctions. He says that these two attributes – coercion and officialdom – mark out what is ‘unique’ about law and is what is common to all uses of the word ‘law’, enables the expression of a concept with a ‘socially highly significant meaning’, a direction to an official to apply a sanction when certain circumstances arise. ‘Law is the primary norm, which stipulates the sanction, and this norm is not contradicted by the delict of the subject, which, on the contrary, is the specific condition of the sanction.’ Since we can in fact establish the validity of legal norms, then we must be able to get back to some ultimate norm that confers validity upon all other norms. This norm – and it must be a norm, because only norms can confer validity on norms – Kelsen calls the Grundnorm , or the basic norm. The reason for the validity of the enactments of Crown-in-Parliament is just what we assume. Kelsen’s theory is more plausible than Austin’s theory because the notion of a norm is much more like that of a rule than that of a command. the idea of a norm, imposing duties or conferring powers upon officials, replaces Austin’s crude idea of a predictable sanction with the psychological element of fear, which cannot distinguish the social phenomenon of being obliged from that of being under an obligation. T he source of validity of the norm rests, for Kelsen, not on the fact that it is issued by a habitually obeyed and determinate person or group of persons, but upon another norm. Kelsen’s basic norm is not identified as a matter of fact but is, rather, a presupposition that certain rules are valid. Kelsen explains the ultimate test of validity by saying that we, or possibly the legal scientist or jurist, presuppose laws to be valid. This leaves open the possibility of not presupposing the validity, say, of a revolutionary regime. The rule of recognition need not be presupposed to be valid. Hart thinks that is a waste of time, the rule of recognition’s factual existence as a test of validity. On the other hand, Hart’s rule of recognition sets out the factual test of legal validity in any particular system, so it will differ in content from legal system to legal system. Kelsen’s argument here is a reductio ad absurdum : since we can do X, then the assumption that we go on to infinity is false. The basic norm is that (coercive) acts ought to be done (by officials) in accordance with the historically first constitution; it is not the fact of the first constitution. Effectiveness is not a sufficient condition for the validity of a legal order, but it is a necessary condition. Kelsen’s theory of validity is thus different from Austin’s and Hart’s, since these two jurists pose criteria of legal validity that rest on facts, not assumptions. The effectiveness of a legal system is a necessary condition for saying it is valid: Kelsen calls this ‘the principle of legitimacy’. When a revolution occurs, Kelsen says that all the old laws in force under the old regime lose their validity because the basic norm that validated them can no longer be presupposed because the old regime is no longer effective, General Theory of Law and State. Equally, the new regime does not automatically have validity. It is effective, de facto , but that isn’t sufficient to make us presuppose that a new basic norm exists. We actually have to assume the new basic norm, even if unconsciously. The State v Dosso PLD, the Chief Justice is mistaken because he equates effectiveness with validity. A similar series of events arose eight years later in Uganda in Uganda v The Commissioner of Prisons, ex parte Matovu and there was a similar decision. And again in Rhodesia, in Madzimbamuto v Lardner-Burke , the judges said the revolution was not clearly effective and so they said the revolutionary government was ‘illegal’ but that they would recognise that government’s acts as enforceable on the grounds of the ‘principle of necessity’ since someone had to govern and an illegal government was better than no government at all. Eventually, in R v Ndhlovu SA, the Rhodesian courts accepted that the illegal government had become ‘legal’ through effectiveness. Each court referred to the doctrine of effectiveness in Kelsen as though, while effectiveness was necessary for validity, it was not sufficient , meaning that the mere fact of control was not enough. The alternative, favoured by Kelsen, is that where law is silent, it should be seen to be silent, so that it is crystal clear to all what is happening is politics, and not law. Jilani v The Government of Punjab PLD in which the Pakistan Supreme Court overruled Dosso and said that Kelsen’s theory of legal revolution was merely a ‘jurists’ proposition about law’ and did not
page 282 University of London International Programmes
authorise or lay down any legal norms, which were ‘the daily concerns of judges, legal practitioners or administrators’; similar comment in Lakanmi, Nigerian Supreme Court. The law-making powers of the revolutionary Rhodesian legislature were not ‘derived from’ the 1961 Constitution. But an unconstitutional change of legislative powers within the one legal system. Kelsen thought that Austin’s theory wrongly derived ‘ought’ of law from the ‘is’ of the fact of habitual obedience to a sovereign. His answer was to invent the concept of a norm and to say that, since norms only exist in the world of norms, they must therefore only be validated by norms. The Authority of Law , Raz says that he sees no reason why we should accept this theory since we can more simply say that laws are normative because they consist of rules. These rules do not have any ultimate justification but are merely identified by the fact that some people – say, judges and lawyers – in fact identify them as laws: all we have to do in order to identify what the laws are is look to the social facts of what judges and lawyers do to identify them. Such a better theory, in order to explain how it is that legal rules arise, Raz calls a theory of ‘social normativity’ and he says that Hart has such a theory. Hart makes the same point in The Concept of Law. There he says that no question of validity can arise about his rule of recognition because it is the test of what is valid. Legal positivism clearly offers a solution in revolution cases because it allows for a sharp distinction to be drawn between ‘political’ and ‘moral’ questions of allegiance to a revolutionary government and questions of legal validity. The doctrine of ‘necessity’ would suggest that legal systems can cope with such situations because there are ‘principles of revolutionary legality’ that can bridge a gap of constitutional illegality. The methodology of legal theory, the criticisms made of legal positivism by the natural lawyers Fuller and Finnis and Dworkin’s idea of interpretivism. Their general criticism is that any theory of law that attempts just to ‘describe’ the legal phenomenon, assumes a picture of law and its relation to the world that is simply not true. Fuller thinks it is in terms of compliance with certain procedural values, Finnis is concerned with problems of social co-ordination. Dworkin’s theory directly contradicts legal positivism and he has spent much of his career attacking that theory, which he thinks cannot do justice to the power of legal argument. Dworkin cannot be taken seriously because he says that there is only one right answer in all law cases and attacking the sort of theories which provide ‘places’ which tell you what the law is, such as the Grundnorm or rules of recognition. Dworkin’s statement that the essential idea in interpretation is ‘making the best of something that it can be’, and that this very abstract idea is to be applied to the idea of law, in Law’s Empire , about ‘constructive’ or ‘artistic’ interpretation, and distinguish from ‘scientific interpretation’ and ‘conversational interpretation’. Dworkin says that we may understand a social practice in three analytical attitudes: the ‘pre-interpretive’, the ‘interpretive’ and the ‘post-interpretive’. Dworkin says there is a third, post-interpretive phase where interpretation ‘folds back into itself’ and has the effect of changing the original rule. whether the rule should be extended, these three phases of interpretation make it clear that Dworkin thinks there is a lot more to understanding a rule than merely ‘describing’ it. The point you ascribe to the rule will supply various principles of interpretation. That sceptical possibility in Dworkin that such principles could destroy the rule. Dworkin calls this sort of argument ‘internal scepticism’. Judge Hercules, Chapter 4 of Taking Rights Seriously; Hypothesized the existence of an ideal judge, against whom we can measure bad or distorted legal arguments Judge Hercules would have made. It is necessary for Dworkin to posit an ideal judge because his theory is about law as an argumentative attitude. He has to provide a scheme of argument which, amongst other things, is sufficiently abstract to allow for controversial argument. The model of Hercules is intended to point the way to correct legal argument. It is one about the objectivity of legal argument, not a criticism of the ideal model of Hercules. ‘If a judge accepts the settled practice of his legal system – if he accepts, that is, the autonomy provided by its distinct constitutive and regulative rules – then he must accept some general political theory that justifies these practices.’ According to Dworkin, Hercules can produce theories underlying all these rules. The justification for the common law doctrine of precedent lies in the idea of fairness, the idea of treating people in a consistent way. legal arguments of principle, which are arguments about a person’s rights, and arguments of policy, which are arguments about community goals. Policy causes difficulties for different reasons, none of which strikes at Dworkin’s thesis, Dworkin calls policy grounds. Judges have a function specific to the litigants, and specific to determining the rights of those litigants. For Dworkin, legal argument in most hard cases will develop as the result of a tension between two dimensions of argument, one that argues towards a fit with what is accepted as settled law, the other that argues towards substantive issues of political morality. McLoughlin v O’Brian. In Dworkin’s view, substantive arguments (relating to the people’s right to be treated as equals) have to be selected to fit (the already existing case law). The method is ideal, that is to say, it is designed to illustrate what the best judging would be and so he employs the idea of an ideal judge, whom he calls Hercules. Their decisions should therefore ‘fit’ the present law, and where there is controversy, they should resolve those controversies in favour of what treats people with equality of respect. Law as an argumentative attitude, Dworkin then discusses scepticism about interpretation. In Chapter 3 of Law’s Empire , entitled ‘Jurisprudence revisited’, Dworkin famously declares that the point of law is to restrain governmental coercion. Coercion should only be used as licensed by individual rights flowing from past political decisions, conventionalism , pragmatism , and integrity.
page 282 University of London International Programmes
Felix Cohen (1935) argued that: legal concepts … are supernatural entities which do not have a verifiable existence except to the eyes of faith. Rules of law, which refer to these concepts, are not descriptions of empirical social facts… nor yet statements of moral ideals, but are rather theorems in an independent system. It follows that a legal argument can never be refuted by a moral principle nor by any empirical fact. Wittgenstein was said to have once described his ordinary language analysis (used by H.L.A. Hart) as follows: A fly is buzzing around in a bottle in such a way that it will exhaust itself and die. Your aim is to provide him with an analysis such as to calm him down and lead him out of the bottle to safety. But you cannot tell him the meaning of the bottle’s existence nor how bottles fit into the overall pattern of the cosmos. That would be metaphysics… By contrast some do want to know the meaning of the existence of law generally and how law fits into the overall pattern of the cosmos
Modernity benefits from role-differentiation and specialisation, which leads in turn to the exchange of products – a society characterised by a complex division of labour. This later form of society Durkheim characterises as held together by ‘organic solidarity’. Durkheim saw the division of labour not simply in terms of a more productive economic order but as ushering in a new type of moral life, which he called moral individualism. As Durkheim put it in his ‘Rules of the Sociological Method’. He separates juridical rules into ‘two great classes, according as they have organised repressive sanction or only restitutive sanctions’; Reid in 1979 sums up the Marxist position thus: the conflict theorists argue that the criminal law does not reflect custom but, rather, the desire of the ruling class to maintain its own interests at the expense of those being ruled. Quinney in 1975: contrary to popular belief, law is a tool of the ruling class providing the mechanism for forcefully controlling the rest of the population’. Durkheim implicitly suggests this process is extremely problematic in modernity since it depends on the nature of the social structure and in particular the state of the division of labour, the collective conscience becomes more difficult to achieve in modernity –the change from repressive to restitutive sanctions. Durkheim neglects the role of the modern state and the strength of repression which the technologies of surveillance and control give to central authority in diverse situations. He neglects also the role of elites in the power structures of complex societies and the structural ability of inhibitors of certain positions in the division of labour to ensure the lineage of their offspring in similar positions. Roger Cotterrell draws in his Emile Durkheim: Law in a Moral Domain : The worst legacy f Durkheim’s legal theory would be complacency about law’s weaknesses and injustices. The best legacy would be to inspire critical analyses of law to explore in new ways how to make legal ideas and practices morally meaningful to the regulated. Durkheim, an almost exact contemporary of Marx, grappled with the problems of dramatic social transformation and the emergence of modern society. He downplayed the issues of economics and power in favour of a science of positive ‘morals’ that was mildly optimistic. Durkheim believed that law was an index of underlying social forms, the forms of social solidarity. Durkheim’s work influenced the development of a whole range of sociology, from conservative sociology, through managerialism, to the strain and control theories of criminology. Modernity demands reasons for action as opposed to following custom and tradition. Weber’s contributions to a sociology of law are diverse and complex; they are also buried in his grand scheme of ideal types and the development of legal rationality in Western civilisation and the role of law in the origins and development of capitalism. Weber gave a thesis on evolutionary stages: First, charismatic legal revelation through “law prophets”; second, empirical creation and finding of law by legal honoratiores …; third, imposition of law by secular or theocratic powers; fourth and finally, systematic elaboration of law and professionalized administration of justice by persons who have received their legal training in a learned and formally logical manner.’ Weber thought rationality would dominate in three ways: the control of the world through calculation ; the systematisation of meaning and value into an overall consistent scheme; the methodological living of daily life according to rules. As a consequence Weber thought we faced an inevitable systematisation of belief, the elimination of logical inconsistencies, the disarming of the magical and mystical, the movement away from particular, or local, forms of thinking, to the more abstract or general. The rise of modern rationality is closely linked to the development of capitalism as a mode of economic and social life and the rise of the nation state. Ultimately one can define the modern state sociologically only in terms of the specific means peculiar to it as to every political association, namely, the use of physical force. Every state is founded on force, said Trotsky. Weber is concerned with the maintenance of political authority, power based purely on physical force is unstable and ineffective. It is important to achieve domination. Weber proposes a model of three ‘ideal types’ of authority: Traditional, Charismatic authority, and Rational legal authority. Weber considered the growth of rational legal authority as the predominant aspect in that process he called the rationalisation of the modern world. Whereas for most of human existence the legitimacy of social systems had rested on traditional, magical or religious elements, modern society appeared to be founded on an authority which itself became rational; it was understood as a calculated form of social structuring, enabling the functional integrity of a society or social organisation; The power of the state officials resides in their legal office not themselves. In the West Weber claimed that law was divided into a set of separate spheres: sacred and secular, private and public, civil and criminal.
Where traditional scholarship finds the guidance of rules and principles, CLS tells us of the inescapably political nature of life. Jurisprudence is produced by people in social contexts striving to write about the truth of law. Marx’s basic ideas of ideology, economy and society: His thought is seen to be largely discredited by the Soviet system in what was the USSR. With the fall of the Berlin Wall in 1989 and the collapse of ‘communism’, it appeared that the epoch of Marxism had come to an end. Marx is relating the form of the law not to the ‘development of the human mind’, but to ‘material conditions of life’, the mode of production of material life determines the general character of the social, political and spiritual processes of life. Marx describes such ideas or beliefs about the world as ‘ideologies’ that it mystifies. Law is part of a social structure that is ultimately reducible to its economic organisation. The most basic problem with which Marx grapples in his critique is Hegel’s presentation of law as located in history and social experience. Hegel argues that, Society only becomes modern and rational when it is ordered by law; Under the patriarchal system, under the caste system, under the feudal and cooperative system, there was a division of labour in the whole of society according to fixed rules. These rules were not established by a legislator as originally the conditions of material production and a denial of the positivist theory of law. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Raz central features of authority – the service conception of authority; the way authorities mediate between their subjects and the balance of reasons that apply to them; the normal justification thesis; the distinction between the deliberative and executive phases of practical reason and the nature, force and scope of exclusionary reasons – all fit together to explain the nature of law. As traditional ‘power’-based accounts of authority. Hart defines legal positivism, it is not necessary to make a moral judgment in identifying law. Kelsen takes exactly the same line. We do not need to make a judgment of morality – about the content of law – to work out what the law requires. The Abortion Act 1967 is law merely by showing that it is an Act of Parliament, and this appears not to require any moral judgment at all. Kelsen describes a set of ‘ought- propositions’, and a set of rules, which independently tell people what to do. Since Hart used an analogy with games on many occasions in The Concept of Law : you can describe the rules of a game without making any judgment about the morality of the game. ‘Social normativity’, according to Raz, explains rule-following by stating that the standards are social, meaning that we identify them by referring to actually accepted standards. ‘Justified normativity’, explains rule-following by stating that the standards are inherently justified, whether or not there is a social practice. In Hart’s theory, the rule of recognition is discovered by straightforwardly engaging in an empirical description of what judges and officials ‘in fact’ recognise as law. Kelsen insisted that the law was not to be equated with any description of social fact: there had to be, through the Grundnorm , a transcendental ‘assumption’ of validity. Hercules is an ideal judge. He need not therefore exist, in the same sense that the ideal economic market does not exist. On the other hand, both ideal ways of judging and the perfect market exist in the sense that they are present always, guiding judges and economists to better decisions. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ John Austin explained the law in terms of commands backed by the threat of sanctions and the provenance of these commands from the sovereign coupled with the habit of obedience ( fails on a misunderstanding of the nature of sovereignty). Cotterrell in Austin’s defence that he was describing law as it appeared at the time or that sanctions may be a conceptual corollary of heteronomous normative orders but not a necessary condition of law., the law can only generate true obligations, as morally justifiable. Hart’s ‘ordinary language’ method; linked Austin to Hobbes. Austin thought of sovereignty and its characteristics (illimitability). He was eager to reduce the law to something empirically identifiable with those characteristics; the continuity of law and the legal character of the sovereign problems; Austin’s theory of sovereignty: there are two ways of considering it (collectively and severally). The key point is that Austin specifically allows for the legal limitation of the sovereign considered severally (e.g. the king as a limb of parliament is punishable by an act of parliament, in the event of his transgressing the limits which the constitution has set to his authority). Austin’s view of constitutional law – whether it is positive morality only, or a mix of positive morality and positive law – depends precisely on the type of government in place. Cotterrell ( The politics of jurisprudence ) to defend Austin on these grounds: ‘orders backed by threat’, Whether all laws include sanctions or not is not directly related to whether law is reducible to the will of the sovereign and the characteristics of the sovereign. The concept of sovereignty in Austinian jurisprudence and the standard objections to it, both conceptual and empirical; illimitability and indivisibility; The Austinian conception of the sovereign from Benthamite and Hobbesian might be viewed as an all-powerful individual institution. The implausibility of Austin’s reliance on a ‘habit of obedience’ Austin conceived of all genuine laws as commands backed by sanctions, whereas Kelsen’s notion of a law is a norm which stipulates a sanction, ‘authorises’ officials to apply sanction. For Kelsen a system of laws is not a system of commands, but a system of authorised permissions. Hart’s criticism that these theories of law fail to reproduce the different ways in which the law guides behaviour. Kelsen ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Kelsen’s theory of law is ‘pure’ that he captured law independently of moral norms and empirical facts. The basic norm is neither a moral norm nor a social practice; Kelsen rejected Raz argument that neither objective morality nor social practice as the source of law; and the basic norm is a transcendental ‘presupposition’ that could be changed with revolution; Raz, Hart and Finnis articulated critical arguments; and Paulson on the transcendental neo- Kantian reading of the Basic Norm: Kelsen’s inadequate and tortured definitions of the Basic Norm defined what a norm is for Kelsen, it is circular because its identification already requires knowledge of the legal system; that it disregards the attitudes of people, which are constitutive of law; and that it fails to establish a third alternative to the two standard conceptions of normativity, i.e. social on the one hand and justified or moral on the other). However, if the Basic Norm is understood as a necessary support to the general theory of norms, an interpretation of the Basic Norm along neo-Kantian, Kelsen was trying to develop an account of normativity that is irreducible both to social practice and morality. Kelsen’s pure theory of law in which law’s normativity was sui generis. Kelsen considered it a mistake to reduce law to morality or to empirical fact; to describe law as independently, and purely normative. The specifics of Kelsenian jurisprudence the legal ‘ought’, ‘imputation’, and especially the Grundnorm. The idea of normativity, Kelsen subjectively believed that all theories of law besides his own pure theory got the nature of law’s normativity wrong. Kelsen’s recasting of the Grundnorm as a fiction rather than a presupposition as evidence of the problematic foundations of the whole project. The Grundnorm requires compliance with the historically first constitution and the further norms it authorises. The law is basically a structure of auth orisations, from the constitutio n to the norms a judge is auth orised to give in a particular case. The ‘revolution’ cases was for a change. Imperative’, or ‘sanction-based’ theories of law and legal obligation, whilst initially plausible to most people, can quite easily
Dworkin’s theory of law-as-interpretation picks up where legal positivism left off; the Postscript to The concept of law , Dworkin develops a substantive theory of the law in specific contexts, whereas Hart’s aim was to outline the framework of legal thought, to present a concept of law. Hart’s argument that Dworkin offers a theory of application of law, which is socially identified. Dworkin’s later (2004) reply that the data in the pre-interpretive method are prima facie manifestations of concepts with a deep normative structure, which needs to be interpretively determined. Conceptual analysis of normative concepts is always committed and interpretive. If a judge accepts the settled practice of his legal system – if he accepts, that is, the autonomy provided by its distinct constitutive and regulative rules – then he must accept some general political theory that justifies these practices.’ Dworkin, Taking Rights Seriously The methodological aspects of the positivism/non-positivism debate. While positivists would argue that it suffices to give a hermeneutic account of attitudes, non- positivists would argue that nothing short of giving an account of the reasons supporting the law will suffice. Socio-theoretical perspective; Hohfeldian classification of rights accurately captures our legal concepts of rights and duties. Hohfeldian scheme of legal norms The idea at the heart of all forms of liberalism is that all individuals are valuable in their own right, and this is why liberals emphasise equality before the law; Liberalism, such as Mill’s harm principle; or Dworkin’s idea that the state must treat all individuals with ‘equal concern and respect’.
Marx and secondary Marxist literature (Pashukanis, Althusser, Thompson); Marxism does not offer a theory of law but rather a theory against law; Marx was not a conventional scholar of jurisprudence. For political struggle and ‘changing the world’, Marx, truly significant change would only be wrought through the revolutionary activity of the proletariat overthrowing the capitalist social, economic and political order. Changing the forms and values of law through social action, which was limited to the revolutionary problematic. The place of law in Marxist thought and the different ways in which the interrelation of law is an element of the superstructure to the economic base. Pashukanis and his account of law framing property relations; E.P. Thompson’s argument regarding the rule of law; or Althusser’s argument regarding the relative autonomy of the superstructure. Marxist thinkers are generally critical of modern law, because it helps to stabilise and perpetuate the capitalist mode of production and all the ills that come with it. Marx and Engels (Marx deals directly with the Factory Act), differentiate between instrumentalist and structuralist Marxist accounts of the law, highlight the problems with the former pertaining to the kind of worker- friendly legislation; the use of ideology or other stabilisation conditions. Pashukanis’s thesis regarding modern law and capitalist exchange relations; whether law can ever really be beneficial to the working class. Marx’s anti-Hegelian view that the development of the law and our understanding of morality is not a matter of the ‘development of the human mind’ but is rather a consequence of the economic relations which predominate in any given society. Marx’s idea of the ‘means of production’, and the way in which class figures in economic relations. Marxist perspective, in particular mystifying the function of ideology, in particular in terms of the way legal rights, while ideologically regarded as ‘universal’, reflecting every individual’s equality before the law, are actually both reflective of, and protective of, the position of the dominant economic class. concepts of base and superstructure. The base-superstructure analogy; placing the law in that analogy; different takes (with instrumentalist and structuralist accounts being the most obvious ones) on how the economic base determines the superstructure. C ritique of Marxist ‘instrumentalist’, Pashukanis, modern capitalist law is modelled on exchange relations and draw the distinction between that type of law, which deals in abstractions, and law qua regulation. The study of law makes sense only as an element of a broader social science, Weber and Durkheim understand the notion of social science, and law is located within this problematic. Durkheim’s concern with the division of labour relates to his understanding of forms of law. For Weber, the concern with the creation of bureaucratic rationality which can be described through ideal types also gives insights into forms of law and authority. Max Weber’s account of rationalization and Emile Durkheim’s account of mechanical and organic solidarity. An ‘anti-jurisprudential’ prioritise the social sciences over the humanities (e.g. philosophy) as the more fundamental intellectual perspective on the law. Weber historical patterns of rationalisation ; the typology of authority, Marx, the mode of production is essential to the form that law will take; law is necessary for the reproduction of a social totality elements of reductivism in Marx. The letter from Engels to Bloch as evidence, there is the idea that law has to be seen as part of the reproduction of a social totality. The base determining superstructure forms, ideology, the ‘commodity’ theory of law in Vol 1 of Capital. Althu sser / Gra msci. Law does not explain itself. It has to be seen from the perspective of broader patterns of social and economic change. The sociology of law refuses to accept that law has an autonomy; instead it is a social practice embedded in social structures, whether cultural, political or economic. In the case of the Zong in various political, cultural contexts, the legal order reinforced and made possible the slave system. Marx is critical of Hegel because his philosophy reduces history to a pattern. As Pashukanis argued that all exchange was capitalist exchange, all law was bourgeois law. The consequence of this argument is ‘a one- sided critique which excluded the possibility of socialist legality and neglected any question of democratising and socialising the law’. as the Soviet system. Pashukanis’ legal theory ‘played into the hands of the Stalinist regime, which deployed his theory of the primacy of technical regulation under socialism to justify the power of the bureaucracy and disregard for legal constraints’. Criticisms are aimed at the Stalinist Soviet regime, which had turned into tyranny, and ‘complacent liberalism’, which had itself failed to resolve the exploitations of a capitalist mode of production. They build on the views of Karl Renner to suggest that the formal equality and neutrality of the law hide the fact that it continues to serve the interests of those who hold economic power. This is to re-affirm a faith in socialism, but to connect this with an idea of the rule of law: ‘the rule of law could only be fully realised under socialism, since under capitalism it is distorted and corrupted by private interests’. The rule of law now means that state institutions must be democratised, and that legal regulation must continue into the private sphere to ensure ‘the nationalisation of industry, but also by welfare legislation on employment, social security and child protection’. Althusser argues that there is no simple relationship between economic base and social superstructure. Rather, there could be ‘differential’ relations between base and superstructure. The ideological state apparatus is defined as a form of power operating in the interests of the state. A Marxist account might argue that trade law is unable to regulate the inequalities that exist in the world market place. Feminist jurisprudence is therefore best conceived as the output of women consciously positioning themselves as feminists seeking to represent their experiences and reflections and attempting to express the lived meaning of the feminine in a dominant masculine culture where law is clearly relied upon as a crucial regulatory and structuring mechanism.
page 282 University of London International Programmes
Transformed rights are conceptualised as immunity rights, destabilisation rights and solidarity rights. Destabilisation rights would accompany immunity rights. The former would protect individuals or groups against applications of governmental power and against any form of exclusion from public decision-making. Immunity rights would also guarantee an adequate amount of welfare protection. Destabilisation rights would be dedicated to the breaking down of hierarchies of power. Alongside destabilisation rights, solidarity rights would ‘give legal form to social relations of reliance and trust’. Unger argues that this developed notion of rights would offer a greater chance for a form of social organisation where equality is achieved through the breaking down of inequitable holdings of wealth and rigid hierarchies. Marx is not only critical of Hegel’s understanding of history. He is critical of the way in which Hegel confuses different historical forms. Behind the form of law is private property. Marx is able to suggest an analogy between sovereignty and property: Public power, furthermore, was not seen as resting on private power. Marx’s ‘Paris Manuscripts’: ‘Even if capital itself does not merely amount to theft or fraud, it still requires the co-operation of the legislation to sanctify inheritance’; Economy is a set of relationships that have to be seized as a dynamic totality. The state has fallen entirely into the hands of those who own property – a class that Marx called the bourgeoisie. The bourgeoisie organises itself politically and takes control of the state. The state therefore come to serve the interests of this property-owning class. ‘With modern peoples, where the feudal community was disintegrated by industry and trade, there began with the rise of private property and civil law a new phase, which was capable of further development. The very first town which carried on an extensive maritime trade in the Middle Ages, Amalfi, also developed maritime law. As soon as industry and trade developed private property further. When later the bourgeoisie had acquired so much power that the princes took up its interests in order to overthrow the feudal nobility by means of the bourgeoisie, there began in all countries. The first British factory legislation (the Health and Moral of Apprentices Act) appeared in
- This, like subsequent statutes, was restricted to the textile industry. Not until 1860 was any other industry legislated for (the Bleach and Dye Works Act). Law attempts to keep pace with social and technological change. Legal definitions are driven, in part, by the requirement that law should regulate the world of economy. The creation of a normal working-day is, therefore, the product of a protracted civil war, more or less dissembled, between the capitalist class and the working-class. Marx seems to be suggesting that the only way in which social justice will be achieved is to sweep away an economic order, and hence an order of the state and of law. Social justice is achieved through revolution. The Russian revolution of 1917 is one of the key points in the development of Marxist thought, and socialist revolution, that the theory of Marx and Engels of the inevitability of a violent revolution refers to the bourgeois state. Law cannot achieve equality and justice unless it is linked to an economic order that ensures communal ownership of the means of production. ‘Bourgeois law’ will only ever reflect private property ownership; Lenin goes on to argue that: ‘in the first phase of socialism “bourgeois law” is not abolished in its entirety, but only in part, only in proportion to the economic revolution so far attained. “Bourgeois law” recognises them as the private property of individuals. Socialism converts them into common property. To that extent – and to that extent alone – “bourgeois law” disappears.’ ( ibid. ) One of the most celebrated Soviet writers on law: Evgeny Pashukanis. There had been a successful overthrow of the old government, and a socialist system was being put in place. Like Lenin, Pashukanis argues that with the triumph of the planned economy and the destruction of private property. Law is derived from the form of private property. In medieval times, the relationship of subservience and dominance is not legally articulated: ‘the slave is totally subservient to his master’. The law can determine in great detail what may be bought and sold, how, under what conditions and by whom.’ (Pashukanis, A General Theory of Law ) Since Pashukanis saw law as based on exchange relations and since he equated capitalism simply with the generalisation of exchange (rather than with exploitative relations of production which derive from the exchange of labour power), he could only conclude that all exchange was capitalist exchange and all law was bourgeois law. The result was a one-sided critique which excluded the possibility of socialist legality and neglected any question of democratising and socialising the law. This played into the hands of the evolving Stalinist regime, which deployed his theory of the primacy of technical regulation under socialism to justify the power of the bureaucracy and its disregard for legal constraints.’ The demise of the socialist dream in Soviet Russia should not be seen as exhausting the Marxist project. We can refer to a later phase of Marxism that was as critical of Western societies as it was of ‘state socialism’. French Marxist philosopher, Louis Althusser (1918–90). Marx was careful to point out that superstructural development cannot be plotted in the same way as economic change. There is a differential development between base and superstructure. The complex relationship between the economic system and the other institutions that compose the social structure. At the heart of Althusser’s system is the mode of production. Althusser’s thinking moves from the economic through to a positing of the entire social totality; thus to describe the social totality is to ‘define’ the economic. Althusser is suggesting that it is too simplistic to describe the inherently complex set of relationships and inter-relationships that characterise social being in terms of isolated instances. Law as essential to the structuring of economy, and economy as therefore inseparable from law. Althusser is breaking down the distinction between base and superstructure, to produce a theory of the economic determination of the social as one of complex conjugation. The Marxist tradition understands the state as an instrument of the ruling class. The instruments at its disposal are not just the repressive institutions such as the police, and, in emergencies, the army. These ‘repressive’ state apparatuses (RSAs) do not all operate through physical repression. ‘Administration’, for instance, works through bureaucratic structures that regulate and distribute resources. Moreover, it is a commonplace of political theory that rule through physical repression alone is inefficient, and encourages resistance. Capitalism is a social formation that must reproduce the conditions of its own production (Althusser, 1984). It also produces the double requirement of ideology, which must reproduce the skills necessary to work, manage and co- ordinate; and the
page 282 University of London International Programmes
Within a few short years the French Revolution translated liberal ideas of liberal equality and individual rights into political realities, and it showed how such a transformation could take place – through popular revolution based among the great masses of those who had always been politically excluded. Under the revolution, women could not vote or hold any office. Many of the republican leaders insisted that women’s nature made them unsuitable for public affairs. Thus women had to be controlled since they represented the stability of the family; ultimately the public sphere could be the area of liberal rights but women were suited for the home and the strength of the family relied upon male rule. Lynn Hunt, the very concept of political life meant rational, public and universal, and women were defined as naturally subject, irrational, emotional, interested in the particular and hence outside of politics. The rhetoric of liberalism (of equality, freedom, and the rights of man) and particularly J. S. Mill’s work specifically discusses the unfairness of the subjection of women, and could be used by feminists to argue for women’s rights. Lacey (1994) suggests that the first feminist movement was a Liberalist concern arguing for equality which sought to have the same status and protections given to women as males enjoyed under the law. However, this encountered the problem of the male standard and the second period was one of asserting difference, or trying to get the law to treat men and women as equal, but different. The principal aim of the liberal view of law is to uphold the rule of law: that is, that all people are equal before the law: the law is seen as neutral and impartial amongst persons. It is irrelevant what sex or gender you are (also what colour, ethnicity, etc.). The aim of much early second wave legal feminism was to show how women were not treated equally. Wollstonecraft’s, arguments stress that girls or women should be given the same rights to education and opportunities as boys/men. The use of law is therefore a potentially vital tool – to show how law is not living up to its own standards of justice and fairness and equality for over half of the population by failing to give women equal rights; and then to use law, through interpretation or new legislation, to reform existing law. Using this approach, sometimes called the ‘sameness’ approach , it was better to view gender or sex differences as legally irrelevant – give women the same rights and entitlements as men; give women equal treatment; dispense justice even-handedly; try to live up to the ideal of neutrality between persons. However, many saw it as women having to become like men – becoming equal meant movement in a one-way direction towards the male standard, trying to live up to public standards and systems and laws already created by men for men. Such an approach was criticised for removing or continuing to prevent the inclusion of the ‘feminine’ from the law, reinforcing existing biases against women’s experiences; and more difficult for women to live up to the standards if they were standards made in the male image. Criticisms of the ‘sameness’ approach came from various places – in particular from ethic of care or cultural feminist legal theories and radical legal feminists. Carol Gilligan (a psychologist), who identified two distinct moral codes that correspond to gender when she carried out research on various groups. Her work provides counter- arguments to previous research by Lawrence Kohlberg, who identified five stages of moral development with impartial thought being the highest. His research appears to show that women never got higher than stage 3. On the basis of her new findings, Gilligan, In a Different Voice , for a re- evaluation of the feminine. Feminine mode based on caring – the maintenance of relationships, a web of communications and networks; concern for the particular needs of others in their particular contexts. This is the ethic of care, Gilligan, argued that women placed greater emphasis on context and the concrete effects of their decisions on other people: The elusive mystery of women’s development lies in the recognition of the continuing importance of attachment in the human life cycle from the celebration of separation, autonomy, individuation and natural rights. Masculine mode : objective, impartial, impersonal, unemotional, thinking of obligations, justice, rights and rules. That is, the generally idealised form of the legal and political system. This is the ethic of justice. As Gilligan summarises it Kohlberg’s developmental psychology rests on a concept of justice rooted in a ‘rights conception of morality’, which ‘is geared to arriving at an objectively fair or just resolution to moral dilemmas upon which all rational persons could agree’. But, Seyla Benhabib writes: This results in a corresponding inability to treat human needs, desires, and emotions in any other way than by abstracting away from them and by condemning them to silence… Institutional justice is thus seen as representing a higher stage of moral development than interpersonal responsibility, care, love, and solidarity; the respect for rights and duties is regarded as prior to care and concern about another’s needs: moral obligation precedes moral affect; the mind, we may summarize, is the sovereign of the body, and reason, the judge of inner nature. Many queried Gilligan’s findings –a small sample be translated into a world view of the way men and women think. Even if accurate on that front, some are more concerned as to why women may care more than men and why they appear to value relationships more. In legal feminism, the main advocate of this view is Catharine MacKinnon , who says that such differences between men and women are hierarchically socially constructed to best suit men and to keep women oppressed. The gender system itself is a power system , unequally structured to suit men. Law’s supposed neutrality only reinforces this inequality. However, law can be used as a tool to empower women to change both their circumstances and the legal system itself. MacKinnon dislikes the sameness and difference approaches as she believes that both try to make women live up to standards set by men. Affirming difference means affirming powerlessness. Some black and ethnic minority feminists criticised an over-emphasis of gender classification rather at the expense of other social factors like race. They criticised certain feminists for being blind to the diversity amongst women, including class, geographical, cultural and racial differences, and for failing to show how these interact with gender. Glenn: a definition of womanhood exclusively in terms of domesticity never applied to racial ethnic women… The maternal and reproductive role of racial ethnic women were ignored in favour of their role as workers.
Now postmodernists and cultural relativists have claimed that any attempt to find a universal truth or standard of justice for women was going to fail – not only was it undesirable, because it could be seen as neocolonial or evidence of some sort of new imperialism, it was also impossible to do. This development has in turn been criticised for weakening feminist politics because feminism as a political movement depends on notions of women’s inequality/ oppression requiring some type of unified notion of what woman as an identity means. It also poses problems for any radical political theory which might try to suggest certain ways of life or being are better than others. This potentially disintegrates into nihilistic relativism. But their rights not to be violated are upheld – including not being sold or deceived into slavery or being treated as sex objects; to have economic security and a voice in public life; to have control over their own bodies. Cotterell, CLS as radical sceptical realism, rejecting traditional forms of legal doctrinal analysis as pointless and mystificatory. CLS is a development of American Legal Realism. American Realism is difficult to define, but the term is usually seen as making reference to certain ‘presuppositions’ about the nature of law that were immensely influential in America throughout the 1930s and 1940s. Oliver Wendell Holmes, Karl Llewellyn and Jerome Frank, if there was a major theme in realism, it was a reaction against the tenets of formalism. In jurisprudence formalism describes an approach that seeks to isolate and classify law’s unique organising principles. Realism moves away from the formalist approach to the autonomy and coherence of law. It seeks the insights of sociology and psychology, to argue that understanding the law means looking at legal processes within their social and behavioural context. We can relate this point back to the idea of scepticism dealt with above. Realism is sceptical about a narrow normative analysis of law. It would prefer to focus upon the law-maker, and to see judicial legislation as a reality. Legal decisions are profoundly influenced by the preferences and value choices of decision-makers. Extending this position would suggest that a legal decision reflects a particular political decision, rather than the working out of a coherent legal order. In Cotterrell’s summary: ‘law is a matter of people doing the jobs of government, resolving or containing disputes, allocating benefits or detriments and channelling state power to achieve specific purposes’. CLS is a radical extension of these themes. Applying the sociological insights of realism as a way of accounting for the emergence of CLS, it came out of the social dislocations that America was experiencing in the 1960s and 1970s: ‘For the early crits., contradiction and dissonance are not simply ideas, but routine experiences. Authority has demonstrated in concrete, practical and unequivocal ways that it cannot be trusted. And for this generation, there would be a lasting ambivalence towards authority. Authority would be something to resist, renounce and, paradoxically, to assume as well.’ (Schlag); CLS scholars come from a generation that found themselves protesting against the Vietnam War, informed by the social revolutions of the 1960s, turned their attention to the form of law, the way that law was taught, and the way that law was theorised as a profession, in touch with radical ideas about the social world; as a tradition that develops out of America, and is invigorated by different ideas and by the need to think about the law in different geographical and historical circumstances. The positivist philosopher Jeremy Bentham argues that the there is a censorial or critical aspect to positivist jurisprudence; he attacks William Blackstone for being too deferential to the law and its organisation. Arguably, it attempts to be critical in a radical sense. Radical criticism attempts to identify deep-seated problems with law and the legal order. It does not seek to argue that individual laws could be reformed or made more efficient: rather it sees the law as profoundly flawed. Reform will not solve these problems. The law itself is compromised. CLS scholars have tended to look at law’s role in society, and argue that both law and society need to be politically transformed. They have seen endemic social tensions that characterise institutions as offering this potential for transformation. Institutions such as law create social hierarchies that are difficult to change and appear resistant to any interpretations or activities that might disrupt or redefine their modus operandi. Roberto Unger calls an ‘endless stream of petty conflicts that may escalate at any moment into more fundamental context-threatening disputes.’ Duncan Kennedy’s in ‘The structure of Blackstone’s Commentaries’. Kennedy opposes the idea of the fundamental contradiction to Blackstone’s concept of the coherence of common law. A fundamental flaw in society that the law cannot overcome and remains ‘hidden or disguised’ in legal thinking. The nature of social life: ‘relations with others are both necessary and incompatible with our freedom’. In ‘Freedom and constraint in adjudication: a critical phenomenology’, Kennedy argues that the law can be manipulated by lawyers and judges towards ends that they consider appropriate. Peter Gabel has argued that legal reasoning abstracts from the concrete social world in ‘Reification in legal reasoning’. Gabel argues that the law cannot provide a meaningful sense of community for people. This builds on his arguments about reification. Expanded doctrine is a critique of a formalism that proposes law as a coherent body of rules that are devoid of politics. Transformed rights distinguished from the limiting connection with the protection of settled property relations. They can be conceptualised as immunity rights , destabilisation rights and solidarity rights. Postmodern jurisprudence: CLS as practised and developed in Britain defines itself against a jurisprudential orthodoxy, and the American critical legal tradition. The perceived historical failure of the Marxism in the revolutions of 1989, and also in the chaos and insight wrought by the first reception of postmodernist thought. From the perspective of bourgeois philosophy, the progress of the law is marked by the political community where government is limited by the rights of the citizen. Critical legal studies has been taken up by South African scholars to look into both law’s complicity with apartheid, and the possibility of creating a new legal order. South African CLS is concerned with the question of how a new beginning is possible. It confronts the exhaustion or intellectual bankruptcy of what had passed for the legal philosophy of the old apartheid order. One of the most important topics has been the Truth and Reconciliation Commission (TRC), and the issues of community that it raises. In modernist sociology, consensual or conflictual underpinnings of human community provide an orientation to study. Likewise, political discourse seeks to talk of community in terms of power and authority. Hobbes’ Leviathan, rethought
The Lawrence Inquiry The limitations of Lord Scarman’s definition of racism were given in evidence to the Lawrence Inquiry as descriptions of how both the Political Complaints Authority and the police appreciated the issue of discrimination. Overarching is the reluctance to come to terms with the need to police a multi-racial society. As institutional racism, it expresses itself not only in the failures of the Lawrence murder investigation, but also in the disparity in the numbers of black people stopped and searched by police and the under-reporting of ‘racial incidents’ and the inability of the police to take the issue seriously at the level of training - before 1998, ‘not a single officer’ had received training in ‘racism awareness’. It is this ‘collective organisation failure’ that has been described as institutional racism. The three phases can be broadly represented as beginning with the first attempts to exploit the resources and manpower of South America and Africa by European powers. The nineteenth century, where direct appropriation began to be replaced by a regime of treatise and trading agreements. The third movement is that of the more formal colonial rule of the later 1900s; Critical Legal Studies began as a way of thinking about how judges manipulate the law towards political ends. It became a much broader way of thinking about the relationship between law and politics; , regarding liberal law’s indeterminacy and the fundamental contradictions; Deviationist doctrine and the idea of super-liberalism and ‘positive’ contributions to normative legal and political theory. Kennedy’s work of CLS concerned with the indeterminacy of law, manipulated, and a transition in the literature to a wider consideration of power. Gabel/ Kennedy’s ideas of alienation and false consciousness as an aspect of the broader way in which law is related to politics. The fundamental insights of Critical Legal Studies relateing to how American radicals felt about the law in the late 1960s and early 1970s, largely limited to this historical context; Critical Legal Studies (CLS) is, arguably, rooted in concerns that reflect the narrow interests of a small elite of American law professors who were part of a lose intellectual movement that could be rooted in a cultural moment. Concepts like the ‘fundamental contradiction’ and the ‘intersubjective gap’ cannot be carried out of a critique of American legal culture informed by Marxism, Weberian sociology, the ‘counter culture’ and continental philosophy. American CLS is merely a starting point, and that later scholars have redefined the problematic and adapted to different concerns, e.g. South African scholars/activists who explicitly look back to American CLS, but stress the need to re-work in the context of South African politics. Recent developments , such as Gardner’s or Green’s or Leiter’s work, as the central idea(s) of positivism have been subject to extensive scrutiny. Positivism is a ‘pedigree’ theory of law to explain what Dworkin meant, and did not mean. Hart, and Raz’s theory of law is the major defining force for a positivist understanding of law. Distinguish exclusive (‘hard’) and inclusive (‘soft’) legal positivism. Ideology describes a way in which the material conditions of life are perceived and refracted by the dominant and socially powerful beliefs, ideas, understandings and practices. CRT builds on CLS accounts of ideology. However, the central problem is that CLS accounts completely ignore the importance of race in ideology. For CRT, ideology, is expressed through ‘race consciousness’ and impacts upon both black subordination, and ‘the white hierarchy and their identity with elite interests’. In other words, something unites whites across boundaries of class or gender, and that is race. Ideology, in this sense, operates to create a ‘hegemony’ of interests. The primary response was the perceived need to stem immigration. The 1962 Commonwealth Immigrants Act attempted to reduce immigration through issuing employment vouchers. Underlying the Act was the notion of ‘belonging’ that was defined as having a link with Britain either through being born in the country or having a passport issued there. The motives behind the second Commonwealth Immigration Act 1968 was an attempt to create an even tighter legal definition of British nationality. The 1971 Immigration Act was largely informed by the ‘separate spheres’ concept of nationality. It gave legislative form to overtly discriminatory practices that had long been in operation, by dividing British subjects into ‘patrials’ and ‘non-patrials’, non- patrials being so deprived of rights of settlement and to work as to be ‘virtually aliens’. The 1981 British Nationality Act provides a further attempt to control immigration. The definition of nationality was divided into British Citizenship, British Dependent Territories Citizenship and British Overseas Citizenship. These classifications and the hierarchy of rights they reflected were predicated on notions of descendance and familiarity, that themselves depended on a grounding notion of Britishness exclusive to any broader notion of belonging in the Commonwealth. The 1965 Act was a limited measure, creating a criminal offence of incitement to racial hatred and an overseeing body, the Race Relations Board, which lacked basic powers to call for witnesses and documents. The emphasis was on conciliation; only if conciliation failed could the Board refer the case to the Attorney General who may or may not chose to litigate. The 1968 Act extended the provisions of the 1965 Act. It made discrimination in housing and employment subject to civil remedies. Discrimination was defined as less favourable treatment on the grounds of colour, race or ethnic or national origins. The Race Relation Board’s conciliatory role remained, but the Board was now empowered to litigate cases in the county court (McCrudden et al., 1991). Created alongside the Board was a new body, the Community Relations Commission, that was to sponsor ‘harmonious community relations’. There was a slightly different procedure for employment discrimination cases that stressed that they should be resolved by the employer/union bodies. Only if a relevant body did not exist, or a case was appealed, would the Board become involved). The 1968 Act wasas flawed as its predecessor: ‘as most of it was orientated towards individual forms of behaviour it failed to generate resources needed to implement effective programmes. We can modify Von Albertini’s definition. Colonialism was foreign rule. In order to be effective, it was necessary to end or neutralise opposition, and to make possible European activity in the colony. The three phases of colonialism can be broadly represented as beginning with the first attempts to exploit the resources and manpower of Africa by European powers. This phase moves into a later phase in the nineteenth century, where direct appropriation was replaced by a regime of treatise and trading agreements. The third movement is that of the more formal colonial rule of the later 1900s; this latter phase could also be seen as concluded, or redefined, by the withdrawal from empire and the independence of the new African states.
page 282 University of London International Programmes
Although the law is a vehicle for the legitimisation of European rule, it is also became the site of struggle and resistance. In the moment of independence, law is used to define national identity. As an independent nation must be claim its own legal and political sovereignty, law becomes necessary to the definition of the post-colonial identity of the new nation states after the withdrawal of the colonial power.
